U.S. v. Meléndez-Santana

• Decision Date: 24 December 2003
• Docket Number: No. 01-2386.,No. 01-2397.,01-2386.,01-2397.
• Citation: 353 F.3d 93
• Parties: UNITED STATES of America, Appellee, v. Rafael MELÉNDEZ-SANTANA, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

353 F.3d 93

UNITED STATES of America, Appellee, v. Rafael MELÉNDEZ-SANTANA, Defendant, Appellant.

No. 01-2386.

No. 01-2397.

United States Court of Appeals, First Circuit.

Heard September 9, 2003.

Decided December 24, 2003.

COPYRIGHT MATERIAL OMITTED

Carlos Lugo-Fiol for appellant Rafael Meléndez-Santana.

Francisco A. Ojeda-Diez with whom H.S. Garcia, United States Attorney, and Sonia I. Torres, Assistant United States Attorney, were on brief, for appellee.

Before TORRUELLA and LIPEZ, Circuit Judges, and SCHWARZER,^* Senior District Judge.

LIPEZ, Circuit Judge.

This consolidated appeal of two criminal cases, Appeal Nos. 01-2386 and 01-2397, requires us to evaluate the validity of certain conditions of supervised release and the procedures used to impose those conditions. This evaluation, in turn, requires us to consider the amount of discretion a sentencing court may delegate to probation officers and whether a condition that is included in a written sentencing order but not announced at the sentencing hearing violates a defendant's constitutional rights.

I.

In Appeal No. 01-2386, the defendant, Rafael Meléndez-Santana ("Meléndez"), and three other individuals met an undercover DEA agent and a police informant on August 21, 2000, in a shopping mall parking lot to purchase twenty-five kilograms of cocaine. The parties had previously negotiated a sales price of $12,000 per kilogram for a total of $300,000. Meléndez agreed to finance this purchase. When Meléndez opened the trunk of his car and showed the purported sellers a portion of the money, DEA agents arrested him and his associates. They found a Beretta 9mm pistol in his possession.

In Appeal No. 01-2397, Meléndez committed the crimes approximately three months prior to his arrest on the charges involved in Appeal No. 01-2386. The details regarding this earlier conduct as reported in the parties' stipulated statement of facts are sparse. It appears that Meléndez dropped an individual off at the airport who was carrying $36,000 in a bag. A search of the van that Meléndez was driving produced approximately a kilogram of cocaine, approximately five hundred (500) grams of heroin and several weapons. The stipulated statement of facts did not indicate why Meléndez was not arrested at the airport on that day.

On September 21, 2000, a federal grand jury in Puerto Rico indicted Meléndez on four counts for the August 21 conduct. The indictment included one count of possession with intent to distribute more than five kilograms of cocaine, possession of a firearm in furtherance of a drug trafficking offense, possession of a firearm by a convicted felon, and aiding and abetting. Meléndez pled guilty to the drug possession and possession of a firearm in furtherance of a drug trafficking offense counts on January 23, 2001. On August 21, 2001, the district court sentenced him to a term of twenty-four months on the first charge and sixty months on the second. The terms were to be served consecutively. He was also sentenced to three years of supervised release.

At the end of that sentencing hearing, Meléndez's attorney advised the court that an information had been filed against Meléndez in Appeal No. 01-2397, the case involving the earlier criminal conduct at the airport. In that case, the government accused him of possession with intent to distribute one kilogram of cocaine and approximately five hundred grams of heroin. Meléndez waived his right to indictment and the preparation of a Pre-Sentence Report (PSR) and pled guilty. In exchange for his plea, the parties agreed that he would be held accountable for more than four hundred grams but less than five hundred grams of cocaine. He was sentenced during the same hearing to a term of thirty-seven months of imprisonment, to be served consecutively to the sentence in Appeal No. 01-2386. He was also sentenced to a supervised release term of four years.

Meléndez filed a timely appeal from his sentences, raising a series of challenges to the length of his sentence and to the terms of his supervised release. After a careful review of the record, we affirm part of his sentences, vacate other portions and remand for re-sentencing by the district court.

II.

We begin our analysis with some background information on the supervised release system. Congress abolished the existing parole system in the Sentencing Reform Act of 1984, § 212(a)(2), 98 Stat. 1999 (codified at 18 U.S.C. § 3583 (2000)), and replaced it with a new system of "supervised release." The two systems are similar in that both allow former inmates to reenter society under official control. However, under supervised release, courts, rather than the Parole Commission, are responsible for setting and enforcing the conditions of release.

The United States Sentencing Guidelines generally require courts to impose a term of supervised release to follow every felony — or when otherwise required by statute — and they give the courts the option to do so in all other cases. U.S.S.G. § 5D1.1. These terms normally last one to five years. Id. § 5D1.2(a).

The Guidelines list a series of conditions of supervised release that fall into three categories: 1) mandatory conditions that courts must include in every sentencing order; 2) standard conditions that are recommended but not required; and 3) special conditions that are not required but can be imposed under certain circumstances. U.S.S.G. § 5D1.3. The seven mandatory conditions include basic correctional provisions such as "the defendant shall not commit another federal, state or local offense," id. § 5D1.3(a)(1), and "the defendant shall not unlawfully possess a controlled substance," id. § 5D1.3(a)(2). The fifteen standard conditions generally relate to the defendant's responsibilities toward his probation officer. See, e.g., id. § 5D1.3(c)(3) ("[T]he defendant shall answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer."). They also include rehabilitative requirements, such as a condition mandating that the defendant keep a job. Id. § 5D1.3(c)(5).

In addition to the mandatory and standard conditions, there are twelve "special" conditions listed in Sections 5D1.3(d) and 5D1.3(e) of the Guidelines. Section 5D1.3(d) consists of seven special conditions that are recommended in situations in which certain predicate facts are present. For example, one provision bars defendants who have been convicted of felonies or used dangerous weapons in the course of their crimes from possessing a firearm or other dangerous weapon. Id. § 5D1.3(d)(1). Other provisions mandate that the defendants participate in drug and mental health treatment programs when the court finds that such treatment is necessary. Id. § 5D1.3(d). Section 5D1.3(e) lists additional special conditions that "may be appropriate on a case-by-case basis." These special conditions include a curfew, home detention and community service requirements. Id. § 5D1.3(e).¹

If a released inmate violates the terms of supervised release, the court may impose serious punishments, up to and including requiring the violator to serve his release term in prison. 18 U.S.C. § 3583(e)(3). Under certain circumstances, such as where the defendant possesses illegal drugs or refuses to comply with drug testing requirements, the court must revoke his term of supervised release and reimprison him. 18 U.S.C. § 3583(g). We turn now to Meléndez's specific claims.

A. Four Year Supervised Release Term

Meléndez claims — and the government agrees — that the district court erroneously departed from the United States Sentencing Guidelines when it sentenced him to a four-year supervised release term in Appeal No. 01-2397, the case involving the information and the earlier criminal conduct. We concur.²

Before a court may impose a sentence exceeding the Guidelines, it "must give prior notice to the defendant of its intention to impose a term of such an extended duration and must state on the record the aggravating circumstances that justify the upward departure." United States v. Matos 328 F.3d 34, 44 (1st Cir. 2003); see also Burns v. United States, 501 U.S. 129, 138-39, 111 S.Ct. 2182, 115 L.Ed.2d 123 (1991). The government charged Meléndez in an information with possession with intent to distribute one kilogram of cocaine and 500 grams of heroin in Appeal No. 01-2397. Meléndez waived indictment, trial, and the preparation of a Pre-sentence Report and agreed to plead guilty. Under the terms of that plea agreement, however, the parties stipulated that he would plead guilty to possession with the intent to distribute at least four hundred but less than five hundred grams of cocaine.

The original offense for which Meléndez was charged in the information carried a mandatory four-year term of supervised release, see 21 U.S.C. § 841(b)(1)(B), but the offense to which he actually pled guilty only carried a statutory mandatory term of three years of supervised release. 21 U.S.C. § 841(b)(1)(C). The sentencing court erroneously imposed the supervised release term that accompanied the original charge.³ Since the resulting sentence exceeded the Guidelines for the offense for which he actually was found guilty, see U.S.S.G. § 5D1.2(a), and since the court failed to provide advance notice of this departure, we vacate the four-year supervised release provision in Appeal No. 01-2397. We also vacate the portion of the judgment that states that Meléndez pled guilty to possession with intent to distribute one kilogram of cocaine and five hundred grams of heroin. As noted, Meléndez actually pled guilty to possession with intent to distribute four hundred but less than five hundred grams of cocaine, and the judgment should be corrected to reflect this fact.⁴

B. Consecutive Sentences

Meléndez claims that the district court erroneously ordered him to serve the sentences in Appeal Nos. 01-2386 and 01-2397 consecutively. In his view, the convictions should...